Texas Attorney General Defends Hospital That Employed ‘Sociopathic’ Neurosurgeon

Texas hospital patients who have been injured by their doctors already face a rugged legal landscape when they seek restitution in medical malpractice suits, but a new intervention by the state’s attorney general, Greg Abbott, may limit their options even further.

Abbott has asked a federal court for permission to defend four civil lawsuits—none of which name the State of Texas—that have been filed against a hospital that plaintiffs say did nothing to stop a “sociopathic” neurosurgeon from practicing in its facility.

Dr. Christopher Duntsch, who was granted surgical privileges at Baylor Regional Medical Center of Plano in 2011, practiced medicine and performed “minimally invasive” procedures in North Texas hospitals for two years before his license was revoked in 2013, at which time he’d left two patients dead and four paralyzed.

According to court documents, the plaintiffs allege that Baylor knew that Duntsch had substantial substance abuse issues and was a dangerous doctor, but did nothing to stop him. Duntsch, who now lives in Colorado and has filed bankruptcy, is effectively judgment-proof: He has no money to go toward compensating his victims for their injuries.

That leaves the hospital, but the only way the hospital can or will contribute is if plaintiffs can prove their case, which under Texas law requires them to prove that Baylor acted with actual intent to harm patients by not properly supervising Duntsch or by keeping him a credentialed surgeon as long as it did.

Duntsch’s former patients argue that the hospital is being protected by a Texas law, HB 4, which they argue is unconstitutional. But unlike lawsuits involving abortion regulations, for example, the plaintiffs are not suing the state to block the law. That means the State of Texas is not a party to this dispute and could, if it wanted to, let this private lawsuit move forward without devoting a single state dollar to it.

Instead, Republican Attorney General Greg Abbott is coming to the law’s, and the hospital’s, defense—at the same time that he is defending HB 2, Texas’ omnibus anti-abortion law that was enacted, conservatives say, because the hospital admitting privileges that the law requires of abortion-providing doctors will guarantee a higher standard of care.

In inserting his office into this case—one in which admitting privileges not only did not increase the standard of care, but created a situation wherein a hospital appears to have had a vested interest in protecting a negligent, and potentially deliberately harmful but money-making doctor to whom it had granted admitting privileges—Abbott is seeking to make it harder for patients who are victims of bad doctors at hospitals to obtain restitution for harm done.

If Abbott cares about Texans who would be harmed by bad doctors—bad doctors with hospital admitting privileges—it seems a strange move to go out of his way to ensure that patients have as little recourse as possible to address that harm.

As it turns out, Republicans in Texas have a long history of attacking health-care access in the state, and it’s a history not confined to only curbing abortion access and cutting off family planning services.

Back in 2003, Texas conservatives drastically re-shaped the state’s medical malpractice laws with HB 4, to the extent that, for most Texans, the possibility of holding negligent doctors and hospitals liable for bad medical care just simply isn’t an option. This is the law Abbott is defending.

Medical malpractice claims are often complex and expensive. To prove a claim of medical malpractice, a plaintiff typically must show that a provider violated the standard of care in their treatment and that the violation injured them. Medical malpractice claims are also typically claims of negligence, which means the plaintiff doesn’t have to prove that the doctor or provider’s mistake was intentional, just that it deviated enough from what should have happened that it’s fair to have the doctor or provider help pay for the damages that the mistake caused. This is especially true in the context of medical negligence, because the costs related to an injury are often extreme. In the worst cases, a patient dies; but in other cases, the patient and their family can be left carrying the cost of their uninsured medical expenses and future care, which in cases of severe injury tops millions of dollars in a lifetime.

Like other tort reform measures, which seek to reform personal injury law, HB 4 did little to advance patient safety but did much to insulate negligent doctors and hospitals from malpractice damage awards. HB 4 restricts the rights of patients in several dangerous ways. First, it imposes a $250,000 cap on non-economic damages in a malpractice suit. Non-economic damages are the only kind of compensation a jury can award for the injury itself, as opposed to compensation for things like lost wages, attorneys’ fees, and medical bills.

“This bill was passed despite there being no data to support that these kinds of damages caps keep costs down or help patients,” Alex Winslow, executive director of the consumer protection advocacy group Texas Watch, explained to RH Reality Check. “The data just isn’t there.”

Think of non-economic damages as awards for pain and suffering, as they can be tied to how at fault a jury believes the negligent party to be. When conservatives complain about “runaway jury verdicts” they’re usually talking about non-economic damages. Conservatives hate them because they can’t be specifically tallied and ordered up (and therefore limited) in a neat and tidy fashion the way economic damages can. Lost wages? Check. Hospital bills? Check.

But a non-economic damages cap means those who do not earn significant incomes (think the elderly, hourly-wage workers, and stay-at-home parents) are at a distinct disadvantage under Texas tort reform since their economic damages are usually much less. This acts as a significant deterrent to bringing a malpractice claim to begin with, because in order to prove their case, a plaintiff is usually going to need at least one medical expert to explain both what went wrong and what should have gone right. Those experts are expensive and non-economic damage awards help defray those costs. It’s entirely reasonable that in a medical malpractice claim involving a significant injury, expert fees alone would approach $250,000.

To make imatters even worse, this non-economic damages cap is not indexed to inflation, which means that it is effectively worth less and less each year. So even the most obvious cases of medical malpractice may not get pursued because the expense of bringing a lawsuit is simply too much.

HB 4 doesn’t just take away the economic means for many injured Texans to find justice, it takes away important legal means as well. Instead of keeping medical malpractice claims under a negligence standard for doctors and hospitals alike, HB 4 effectively immunizes hospitals by requiring plaintiffs to prove that the hospital acted with an intent to harm patients. That means the only way hospitals have to compensate victims harmed by their doctors and staff is if the injured person can show the hospital essentially wanted the injury to happen.

This impossible standard, the plaintiffs claim, deprives them of due process and their right to access the courts, since it effectively took away their well-recognized common law negligence claim against the hospital. That means there is no real way under Texas law to hold hospitals accountable when they make bad credentialing decisions.

But Greg Abbott disagrees that immunizing hospitals like this has taken away any patient rights, and he wants to defend the law in federal court—even though, legally speaking, he doesn’t have to.

“The state has no obligation to defend this law,” said James Girards, a Dallas lawyer who filed one of the lawsuits.

“State statutes get challenged all the time, and the attorney general has discretion which lawsuits to join and which to ignore,” he said. “But instead, Abbott is pandering to big money donors like Baylor and the insurance industry and protecting their interests.”

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  • Melinda Hampton

    Better than a sociopathic abortion doctor who kills vulnerable women.

    • Jennifer Starr

      Tell me, do you have to make an effort to write nonsense or does it just come to you naturally? Because you seem to have missed the entire point of the article.

    • Dez

      Lol. You mean pro lifers like you who threaten and kill doctors and women who perform/get abortions? There’s a reason why buffer zones are crucial against pro life terrorists. You’re violent to those who go against your agenda.

      • Melinda Hampton

        Wait a minute…you support Gosnell or something?

        Re read my comment.

        • Jennifer Starr

          Re-read the article.

        • goatini

          Gosnell was rightly arrested, tried, prosecuted and sentenced. This website provided all the news on Gosnell since 2010, so we’ve been aware of this criminal and rogue physician for much longer than the vile hypocrites whose desire to erase the civil, human and Constitutional rights of female US citizens would, were it successful, cause thousands of Gosnells to rise and flourish.

          • Melinda Hampton

            oh defending of Gosnell on this site has been pretty strong

            comments like “oh the women didn’t have any options”

            and defending planned parenthood when they didn’t turn Gosnell into the authorities. sick. it’s attitudes like that which kept his murder “abortion”shop open for so long

          • Lieutenant Nun

            That is not defending gosnell you stupid troll.

          • Jennifer Starr

            No, sorry, you’ve got it all wrong. That’s not defending Gosnell. And stop derailing posts with this stupid, off-topic trolling.

          • ansuz

            Going to Gosnell was a step that meant ‘get an abortion or die trying’. I can empathize with that; I’d rather die than give birth. This is not defending Gosnell.

          • CBJ_Uno

            You’d rather die than give birth?

            That’s just not normal

          • ansuz

            I am mentally ill, yes, though given the numbers of people who risk their lives in unsafe abortions I don’t think it’s that particular trait that makes me so.

          • Lieutenant Nun

            47,000 women die per year worldwide from unsafe abortion.

            Pre roe v wade hospital wards were full of dying women who attempted to self induce abortion

          • Arekushieru

            Seriously? You think EVERY woman/uterus-having person wants to give birth and is just HAPPY to be an incubator for a parasitic human? It’s only ABNORMAL in a society that places importance on biological destiny only when the person involved just happened to have a uterus constructed inside their body. After all, I’m pretty sure I know what your answer would be if I asked YOU if you’d rather give birth than live.

          • lady_black

            Oh I have never seen ANYONE on this site defending Gosnell. To say that the women who went to him were desperate is simply stating the truth. Without the truth you can’t get to the root of the problem, which is desperation. What can we do to make sure that women don’t get this desperate? For one thing, we don’t regulate safe abortion out of existence, and we don’t refuse Medicaid expansion that could help poor women obtain effective, long term contraception. It’s a simple cipher, when safe legal abortion is impossible to obtain you end up with unsafe illegal abortion. Quacks and dead women.

          • Ramanusia

            Oh, Gosnell is the creature that the anti-choice would like to force upon women, except ones with less training than he had, so that more than one woman can die, just like the pre-Roe days.

            Women who don’t have options seek out people like Gosnell, and Planned Parenthood had literally nothing to do with him.

            You’re the one who is sick, it’s attitudes like yours that seek to force women to the back alley, where women die. Stop lying about it and stop pretending that Gosnell and the back alley bloodbaths are not exactly what you wish to force upon women.

          • Arekushieru

            Um, many complaints were MADE about Gosnell, but the PRO-LIFE state REFUSED to investigate. Hmm. Wonder why that is…?

          • goatini

            My guess is that someone on the state medical board was getting paid off in either cash, controlled substances, or both.

          • Arekushieru

            And/or they wanted to believe that they could use this to further advance their cause because ‘women are just so stupid, they’ll believe anything they hear!”

          • goatini

            “oh defending of Gosnell on this site” HAS BEEN NONEXISTENT.

            NO ONE here defended the exploitation of patients with limited options by criminal Gosnell. NO ONE.

            Criminal Gosnell did NOT work for Planned Parenthood and thus PP had no accountability – and furthermore, no legal ability whatsoever – to “turn Gosnell into (sic) the authorities”.

            The attitudes that let criminal Gosnell stay in business as long as he did were those of the usual suspects – the radical forced-birthers. It is those who seek to criminalize safe, legal pregnancy termination that made criminal Gosnell’s enterprise possible. The down-low pill mill customers aided and abetted.

            Fixed your BS for the benefit of other readers. Can’t leave that nugget of 100% crap out there without the actual facts being presented.

          • Shan

            Just shut the Gosnell references down next time. Think of it like Godwin’s Law. As soon as they bring up Gosnell, they’re done.

          • CBJ_Uno

            Ridiculous comment.

            If any “forced -birthers” (aka pro-life) people knew about Gosnell, he would have been out of business YEARS ago. The fact that Planned Parenthood sat on that info and you seem to be OK with that is sick. More proof of the tactic support of Gosnell by you and others like you on this web site.

          • fiona64

            She’s evidently an idiot. Poor thing.

    • Lieutenant Nun

      You are a sociopath too I see. You would rather see real people suffer vs a mindless brainless embryo.

      You truly are fucked up

      • CBJ_Uno

        flagged for being insensitive to women who dies at the hands of Kermit Gosnell.

        • Jennifer Starr

          Which has absolutely nothing to do with the article above.

        • Lieutenant Nun

          What s next? You gonna flag me for saying that abortion is *not* worse than every genocide ever?

          • CBJ_Uno

            I don’t know. Abortion has prematurely ended 50 million human lives.

            Which genocide has done that?

          • Lieutenant Nun

            Thanks for confirming your idiocy.

          • CBJ_Uno

            You’re welcome. XOXOXO

          • Arekushieru

            Learn the meaning of genocide. Apparently you have no grasp of it whatsoever.

          • CBJ_Uno

            Explain it to me. This will be fun.

            And while you’re at hyphenMAN, tell me which genocide prematurely ended more than 50 million human lives.

          • goatini

            Fetuses are not persons or citizens, and they have no rights.

            Female US citizens have the civil, human and Constitutional right to reproductive justice, and we do not erase citizens’ civil rights in America.

          • Lieutenant Nun

            The contents of your sock *wink*

          • Ramanusia

            Since you equate cells with “human lives” that genocide would be YOU. Your being caused the willful murder of millions of cell people.

          • Arekushieru

            It’s better in a debate if someone who makes the claim understands the proper usage of the word, FIRST, just fyi.

          • goatini

            You mean, safe and legal pregnancy termination has helped 50 million living, breathing women determine their own destinies. Fixed it for you.

        • Arekushieru

          Wrong, you are the ones who are insensitive to women who die at the hands of ‘doctors’ like Kermit Gosnell. The state that imposed the most Pro-‘Life’ restrictions on abortion is where he flourished, after all. THEN the state refused to investigate *actual complaints* made against ‘doctor’ Gosnell. Yes, how Pro-‘LIFE’ and ‘sensitive’ of you. Flagged for being TRULY insensitive to women who die at the hands of Kermit Gosnell.

          • CBJ_Uno

            You know he was from Philadelphia, correct?

            I know, I know. You thought there weren’t any abortion clinics in Philadelphia.

            The hyphenMAN strikes again. —- — —- —— — — – –

          • Arekushieru

            WTF does having other abortion clinics in the state have to do with abortion restrictions, asshole? So, nope, the poor ‘hyphen-“MAN”‘ fails to make a salient point, as usual. After all, the term we discussed earlier? Can be hyphenated only when it’s descriptive. I did not use it in a descriptive manner. Oops. Do stop trying to gain points with someone who got 100% on her English grammar tests almost 100% of the time. Yes, that includes the sentence that I divided into two segments, above, as I was merely trying to make a point with it. Thanks.

  • Lieutenant Nun

    Texas is so pro life.