Sharp reminders of the need to watch out for dangerous doctors

Patients, politicians, and regulators may find it tough to believe, so they need sharp periodic reminders: While there are many terrific, dedicated doctors working today, there also are some truly terrible ones. And dealing with the harms of medical malpractice by the incompetent and abusive can require courage and vigilance.

  • Perhaps a new, streamed Hollywood serial — starring the likes of Alec Baldwin, Christian Slater, AnnaSophia Robb, and Joshua Jackson — can underscore for the public how grisly the results can be until a rare criminal prosecution derails the likes of Christopher Duntsch, a Dallas surgeon so grim he is nicknamed “Dr. Death?”
  • Or maybe it takes yet another deep news media dig into the pokey deliberations of a state medical board, which has allowed 10 doctors to keep seeing patients, even after officials “substantiated [claims against them that] include gross negligence that left patients dead, paralyzed or missing limbs?”
  • It could be that politicians and regulators, in particular, might take long needed action to show real concern “For the Patients,” which is the name of a campaign by Public Citizen — a nonprofit consumer advocacy organization that says it “champions the public interest in the halls of power.”

Congress needs to step up

Public Citizen, based on its half-century of analyzing “trends in state medical board reporting and advocat[ing] for patient safety,” is calling for Congress to close loopholes in federal laws targeted at ensuring patients across the country get crucial information about doctors who perform so poorly they require official discipline.

As the group notes:

“A recent analysis found that of over 8,000 doctors with five or more malpractice payouts since 1990, only 25% have ever been disciplined by their state’s medical board. This low rate suggests that state medical boards often fail to hold bad doctors accountable for patient harm. See our analysis of the trends in state disciplinary actions across the U.S. …

“Congress established The National Practitioners Database (NPDB) in 1986 ‘to improve health care quality, protect the public and reduce health care fraud.’ Since September 1990, state licensing boards, hospitals, and other health care entities, including professional societies, have been required to report certain adverse licensing and disciplinary actions taken against individual doctors. All reports are not publicly accessible so patients who try to get information about their health care providers can’t get access to the database to find out the truth about their doctors. Hospitals are required by law to check the NPDB every two years and every time they hire a doctor.  Half of all hospitals have not made any reports at all to the NPDB in the last 20 years. A big part of the problem is the loopholes and lack of incentives to actually use the data base.  For example, even doctors themselves can’t get information from the NPDB. Despite all of these issues, Congress has not taken decisive action on patient harm in more than three decades. Congress has not mandated a federal bill of patient rights.”

Grim reminder of difficulties in dealing with a bad doctor

drdeathpeacockepisode-300x188The “Dr. Death” saga, which has become a sensation already in versions for print and podcast, illustrates tragically the challenges of dealing with dangerous practitioners.

Duntsch started as a cancer researcher, but exploited licensing loopholes to move to a new part of the country and recast himself as a neurosurgeon and then a spinal specialist.

He went through several hospitals in Dallas, where colleagues reported him to hospitals and medical licensing officials. They stepped in front of him in operating suites and took instruments out of his hands during surgeries. Duntsch, D magazine says, abused drugs, partied, and talked about having wild sex often before long, complex operations. There have been reports that he may intentionally have tried to maim patients. His surgeries were tied to deaths.

His rampage, which resulted in legal claims from dozens of mangled patients, might have run longer, but Dallas prosecutors took the rare step of filing criminal charges against him. Among the damages he was criminally accused of inflicting: amputating a patient’s spinal nerve, causing paralysis; cutting another patient’s vertebral artery and ignoring the major bleeding that occurred; installing a too-long screw so that it punctured a big vein, causing extensive bleeding and nerve damage; slashing a patient’s esophagus and a neck artery, leaving the man struggling to eat, breathe, and with blood loss to the brain.

His eventual criminal conviction was unusual and resulted from prosecutors’ determination that if they did not stop the doctor, the usual authorities that should have done so would not.

Doctors, hospitals, insurers, and medical regulators howl about the civil justice system and decry medical malpractice lawsuits as damaging to practitioners, arguing litigation unfairly pursues good M.D.s who maybe had one bad day. That counter-factual argument does not hold up to rigorous research, showing that only a slice of doctors ever gets sued for malpractice. It also is a tiny segment of bad doctors who not only get sued once, twice, three, or more times — and lose the cases.

Laxity at state medical licensing boards

Still, licensing authorities somehow do not really discipline these repeat offenders, as the Los Angeles Times found when it went back to 2008 to examine cases of the Medical Board of California. Instead, the news organization identified 10 doctors whose miserable practices built chilling files against themselves yet were still in practice.

The various doctors, given probation or other lenient regulatory treatment, were found in different instances to have:

  • left a piece of wire in a patient’s bladder, leaving him impotent, in pain and urinating blood for a year;
  • been convicted five times for driving under the influence, had a license suspended twice before, and “accused of gross negligence in a pending board action for the death of one patient and the permanent brain damage of another”;
  • botched a surgery, according to a pending lawsuit, leaving the patient in excruciating pain and dependent on a walker — this conduct occurring the day before he was due to surrender his license at the end of a “grace period” granted him to sell his lucrative practice;
  • had a license revoked three times and was given probation each time, including retaining his credential while jailed, awaiting trial on charges that he took more than $3 million in illegal kickbacks for surgeries in one of the biggest insurance scams in state history.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the enormous fortitude they must display when they seek justice in the civil system for wrongs committed against them and to ensure bad things get corrected, so they do not happen to others. They also must seek financial redress for what may be major damages done to them and their lives, with patients often needing significant long-time or even lifetime support and medical care.

Public Citizen and news organizations deserve credit for holding accountable not only bad, individual doctors, but also the flawed system that exists and allows poor performers in medicine to just move along and harm others, never really receiving the reckoning they are due for the grave injury they cause.

It should not require the intervention of criminal prosecutors to stop craven doctors like Duntsch. Doctors need to stop defending wrongdoing peers and to engaging in a cult of silence. They must use their professional authority to see that licensing authorities police the practice of medicine in a just way that keeps at the fore the protection of the healing arts’ most important people — patients.  Patients need Congress to step up its work, so they can get a fair and fully informed picture of who their doctors are, including whether they have professional issues — down the block or across the country.

We have much work to do to safeguard patients and to rid medicine of bad doctors.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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