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Licensed to Kill

What legal responsibility does a hospital have to keep a dangerous doctor from operating? Under Texas law, none.
by Published on
walker-706x475
Justin Clemons
Mary Efurd

In January 2012, Barry Morguloff, a 45-year-old Dallas man, went to his doctor at Baylor Regional Medical Center of Plano, complaining of back pain. When steroid injections didn’t work, his doctor referred him to the hospital’s new surgeon: Christopher Duntsch.

Morguloff’s surgery, a spinal fusion, didn’t go well. Dr. Randall Kirby, a prominent Dallas surgeon who assisted Duntsch in the surgery, compared Duntsch’s technique to that of a first-year medical student. Duntsch, he later wrote, didn’t seem to have any understanding of spinal anatomy. Morguloff says he woke up with agonizing pain in his left leg; Duntsch prescribed him painkillers and told him the pain would go away. Six months later, a doctor at Presbyterian Hospital of Dallas found that Duntsch had installed the spinal hardware wrong and left bone fragments in the nerves of Morguloff’s back, requiring another round of surgery to remove them.

In March, Barry Morguloff—along with three other plaintiffs in related suits—sued the Baylor Health Care System in federal district court in Dallas. The lawyers representing Morguloff, Kenneth Fennell, Mary Efurd and Leroy Passmore are coordinating their cases, arguing that Duntsch was dangerous and Baylor should have stopped him from operating on them. Their stories have the trappings of farce: For example, when Duntsch operated on Passmore, a Collin County medical examiner, in December 2011, the surgery went so badly that the assisting surgeon grabbed Duntsch’s surgical instruments and tried to force him to stop, according to Passmore’s lawsuit. (He failed.) Morguloff’s complaint cites the case of another patient—one of Duntsch’s first at Baylor—who he left unattended in the recovery room while he went to Las Vegas.

According to his attorneys, Morguloff will walk with a cane for the rest of his life. Passmore suffers from constant pain and, according to his suit, can’t “lift objects of any significant weight.” Efurd and Fennell allege in their lawsuits that they sustained severe nerve damage.

The striking thing about Duntsch’s relationship with Baylor Plano is just how tolerant the hospital was of his behavior—according to the lawsuits, he literally had to kill someone to get fired. A month after Morguloff woke up in agony, Duntsch operated on Jerry Summers, his best friend and former roommate. According to Morguloff’s lawsuit, Summers woke up from surgery a quadriplegic; he told Baylor’s ICU staff that Duntsch had been up using drugs all night.

Baylor suspended Duntsch for a month. In his first surgery after his suspension lifted, he nicked the vertebral artery of Kellie Martin, a 55-year-old Garland woman. She bled to death in the ICU.

According to Morguloff’s lawsuit, Baylor didn’t raise a stink about Summers’ paralysis or Martin’s death. It didn’t report Duntsch to the National Practitioner Data Bank, a database managed by the U.S. l Department of Health and Human Services—even though hospitals are required, by law, to inform the NPPD when they suspend a doctor. Instead, according to the lawsuits, the hospital let him go quietly.

Morguloff’s lawsuit includes a letter that Baylor gave Duntsch the day he resigned, asserting that Duntsch had no outstanding investigations or restrictions at Baylor. This allowed Duntsch to go on to get credentials at the Dallas Medical Center, where a woman named Floella Brown would bleed to death after he cut into her vertebral artery. And it allowed him to operate on Efurd and Fennell, the other two plaintiffs. During a spinal fusion on Efurd, a Plano woman, in 2012 at Dallas Medical Center, Duntsch amputated a nerve root and placed her spinal fusion hardware far from her spine, leaving her severely injured. In his surgery on Kenneth Fennell, a Dallas small business owner who worked for a pool repair company, Duntsch nicked Fennell’s femoral nerve; Fennell now claims he has nerve damage and chronic pain.

When I wrote about Duntsch last August, there were quite a few unanswered questions. Chief among them: Why did he do it?  Was he a sociopath? A drug addict? And with his record of patients dying or ending up paralyzed, how was he allowed to keep practicing?

Thanks to the new litigation, we have at least a few answers. According to the lawsuits, Duntsch had drug problems that Baylor should have known about. The lawsuits allege a shocking list of behaviors that, if true, should have been huge red flags for Baylor. They contend he was in treatment for drug abuse during his residency at the University of Tennessee. That he was abusing prescription drugs and skipped out on five drug tests that Baylor Plano asked him to take, without any consequences. That he kept a bottle of vodka under his desk; that a bag of white powder showed up in his private bathroom. That he took off for Las Vegas immediately after a surgery, leaving his patient unattended. But despite this, and despite the numerous warnings about Duntsch from doctors and nurses who had worked with him, Baylor continued to allow Duntsch to operate, and even publicized his practice and encouraged doctors like Morguloff’s to refer their patients to him.

Dr. Christopher Duntsch
Dr. Christopher Duntsch

According to the lawsuits, the reason for this was simple: The hospital had advanced Duntsch $600,000 to move from Tennessee to Dallas. “Baylor had spent a lot of money on Duntsch,” attorney Jim Girards wrote in Passmore’s complaint, “and they wanted it back.” If he didn’t work, they didn’t get paid.

But in Texas, it is extremely difficult to use the courts to hold a hospital accountable for allowing a dangerous doctor to operate, thanks to a decade-long campaign, aided by the Texas Supreme Court and the Texas Legislature. Under current law, Baylor Plano can make money off a high-dollar surgeon like Duntsch without being financially accountable for anything that he does.

The four Duntsch patients want to change that. Their only recourse is to challenge the constitutionality of the laws shielding Baylor Plano. If they win, hospitals could once again be responsible for the actions of the doctors they allow to practice. But they’re confronting powerful opponents, not just a lucrative hospital. Texas Attorney General Greg Abbott, who’s made limiting lawsuits a feature of his political career, is facing off against them in court. Barring an upset in court, it’s likely that the hospitals who allowed Duntsch to kill and maim patients will never pay a cent in damages.

 

Tort reform—an effort to reform liability laws to make it harder for plaintiff to sue—had been a major aim of the Republican Party since the mid-1990s, when cases like Liebeck v. McDonald’s —the infamous “woman sued McDonald’s because her coffee was too hot” case—began to circulate in the media, part of a PR campaign by the tobacco and insurance industries to convince Americans that the country faced an onslaught of frivolous lawsuits.

Never mind that Liebeck required skin grafts, or that McDonald’s had already received more than 700 complaints of injuries from scalding coffee. The frivolous lawsuit line fit into both American distrust of lawyers and the “other people are taking what’s yours” narrative so dear to American conservatism.

After President Bill Clinton vetoed a 1996 tort reform bill that, he said, “tilted the playing field against consumers,” the tort reform campaign shifted to the states. The campaign wasn’t totally baseless—trial lawyers wielded an enormous amount of power in Texas back in the 1980s and 1990s. But the reformers went far beyond a small correction. In Texas, virtually the only defense people have against malpractice by doctors and hospitals is the civil courts. And in the late 1990s, the Texas Legislature and Texas Supreme Court began working in tandem to strip those defenses away.

The first blows came from the courts. In 1996, in two separate cases, the Republican-dominated Texas Supreme Court held that hospital credentialing records were confidential. To practice medicine in a hospital, a doctor has to receive permission, or credentials, from the hospital. The credentialing process can generate documents that provide insights into the hospital’s due diligence and the doctor’s past.

After Supreme Court ruling, plaintiffs trying to prove that a hospital had erred in giving a doctor credentials had to do so without having access to the documents.

Then in 1997, in St. Luke’s Episcopal Hospital v. Agbor, the court made a decision that led to a further deterioration in the rights of patients. The Agbors sued St. Luke’s after their baby’s arm was permanently crippled during birth. They argued that St. Luke’s never should have given their doctor credentials, given her lack of medical malpractice insurance and the numerous malpractice cases she’d racked up.

During the trial, St. Luke’s lawyers made an innovative argument. Under Texas law, anyone suing a hospital for improper credentialing had to demonstrate that the hospital had acted with malice. Until Agbor, this had been understood to be a standard for doctors: A litigious doctor suing a hospital’s peer review board for denying him or her the right to practice had to prove that the board had done so to harm him deliberately.

St. Luke’s lawyers stood this precedent on its head and argued that it should also apply to patients. The Agbors, they said, had to prove that the hospital had acted maliciously toward them by giving the doctor credentials. The Supreme Court agreed and the Agbors lost.

The ruling hit malpractice lawyers like a thunderbolt. This new standard was “idiotic,” said Paula Sweeney, a Dallas attorney and authority on medical liability. “What the Legislature intended was for hospital staff to be able to get rid of a bad egg if they wanted to do that.”

Together with the new secrecy around credentialing, it became very difficult to successfully sue hospitals for permitting a dangerous doctor. “It was a perfect Catch-22,” Sweeney wrote me in an email. “You have to prove malice but you can’t get any evidence to do it.”

Click to read Barry Morguloff's suit against the Baylor Health Care System.
Click to read Barry Morguloff’s suit against the Baylor Health Care System.

But the ruling didn’t kill the ability to sue hospitals. You had to prove malice, but malice then was a broader category than it is now: It included the legal concept of “gross negligence,” which means knowing something is dangerous and doing it anyway. Mike Lyons, Morguloff’s attorney, defined gross negligence to me as akin to “knowingly allowing a child sex offender to take a job in a pre-school.”

If someone could prove in court that, say, hospital administrators knew that a doctor was addicted to cocaine and that his patients had a tendency to wake up paralyzed, the attorney had a reasonable chance of winning the case even without credentialing documents. But then in 2003 the Legislature closed even that avenue.

 

In the years leading up to the 2003 session, a coalition of Texas medical interests and insurance companies unveiled a new plan which would, they said, massively increase Texans’ access to medical care. The coalition, which included the Texas Medical Association, the Texas Hospital Association and groups like Texans for Lawsuit Reform, argued that doctors were fleeing the state. Texas, they claimed, had become “the lawsuit capital of the world.”Greedy patients were teaming up with cynical fat-cat trial lawyers to file frivolous big money lawsuits that were chasing away Texas doctors. While relatively few doctors were sued, the argument went, the judgments helped lead to expensive medical malpractice rates. Tort reformers argued that these high rates were chasing away doctors.

If that sounds oversimplified, well, that really was about the level of debate at the time. Some of the reformers’ arguments were simply false: Texas was gaining doctors, not losing them. And while it was true that medical malpractice rates had spiked in the years before the session, the role of lawsuits in the spike is disputed. According to a 2003 Public Citizen report, rates were climbing because insurers had kept them artificially low throughout the 1990s in an industry-wide competition for market share.

But tort reform had a seductive ring to it. I have on my computer a 2002 direct mailer in support of Proposition 12, the ballot measure that enacted sweeping changes to Texas’ civil liability laws. The front has the face of a concerned-looking guy in a lab coat juxtaposed with a fat-faced schmuck smoking a cigar. Below it, in bold text: “Whom would you trust … If your life was on the line?”

Given that choice, the answer was obvious. Proposition 12  overwhelmingly barely passed, with 51 percent of the vote. The measure didn’t end up dropping medical costs or attracting more doctors to Texas. But it did make it dramatically more difficult—and in the case of hospital credentialing, impossible—to successfully sue a hospital.

The best-known provision: the Legislature capped all non-economic damages—pain and suffering and the like—at $250,000. The idea was to keep juries from handing out big awards based on squishy emotional appeals. But because plaintiffs could still get compensated for hard costs, like lost wages, the effect was to kill medical malpractice lawsuits for all but the richest plaintiffs.

“When you cap non-economic damages but not economic damages, your worth is what your paycheck is,” said Alex Winslow of Texas Watch, a nonprofit consumer watchdog. “If you’re a corporate CEO, or a lawyer, and you can calculate high economic damages, you might be able to get a case to court. For the rest of us, who don’t have huge economic damages, we won’t get to go to court. The effect of the law has been such as to close the courts for most victims of medical malpractice.”

And as they made it difficult to get much money from doctors, lawmakers made it impossible to get anything from hospitals. With House Bill 4, the legislation that Prop 12 enacted, the Legislature took the legal tool of “malice” and rendered it useless.

In House Bill 4, the Legislature rewrote the definition of malice to mean “specific intent to harm.” Under the new law, a plaintiff now had to prove that a hospital had given a bad doctor credential in an effort to hurt them, the patient. This is basically a horror movie scenario. And like a horror movie, it’s hard to imagine it actually happening.

“The standard is impossibly high,” Alex Winslow of Texas Watch told me. “Other than the hospital administration turning to the doc and saying, ‘Here’s your next victim, go get them,’ I don’t even know how anyone can meet that standard.”

And, he said, it misses the point: Patients have little way of knowing first-hand about the quality of a hospital’s doctors. They rely on hospitals for that.

“The hospital should have some legal responsibility for making sure doctors seeing patients have a safe track record,” he said, “that they have no history of abuse, they’re not on drugs, they’re meeting basic standards of safety. And law doesn’t require that.”

 

In 2005, all the pieces came together, as the Texas Supreme Court showed just how high the bar now was for suing a hospital. In a case that gruesomely foreshadowed Duntsch’s, the court completed the work of shielding hospitals entirely from liability.

On July 15, 1998, Ricardo Romero went in for elective back surgery to Columbia Kingwood Medical Center, in northeast Houston. His doctor was Merrimon Baker, a South Carolina resident who had been sued 10 times for malpractice. Baker also had a serious hydrocodone addiction, according to the Supreme Court decision.

No one at the hospital told the Romeros any of this.

The Romeros also weren’t told that Baker had been suspended a month before Romero’s surgery by Cleveland Regional Medical Center, another Houston hospital, for operating on a patient’s wrong leg. Baker had secured a temporary restraining order to keep Cleveland from telling Columbia’s administrators what had caused his suspension, even though one doctor served on both hospitals’ peer review committees. That restraining order expired the day after Romero’s surgery.

That was a day too late. During surgery, Baker perforated Romero’s spine. Over the next 45 minutes Romero lost, according to the Supreme Court decision, “almost all of the blood in his body.” Romero’s heart stopped, and though the doctors resuscitated him he was left brain damaged to the point that he was unable to care for himself.

Dolores Romero, Ricardo’s wife, sued Columbia Regional for letting Baker operate. At trial, a jury awarded the Romeros $28.6 million and punitive damages of $12 million. Columbia appealed.

The Romeros had to prove “malice,” but because Romero’s surgery had happened before the Legislature weakened the statute, the family could still argue that malice included gross negligence. But the appellate court’s decision demonstrated how much patients’ rights had been eroded even since the late 1990s.

The appellate court ruled that Baker did represent an “extreme risk” to his patients. But because Columbia had the right of keeping its credentialing files confidential, there was no way to know that it hadn’t taken actions to protect patients, such as requiring him to take drug tests. “But one thing we do know,” the judge ruled, “we cannot infer anything from this lack of information.”

In other words, the Romeros couldn’t prove Columbia hadn’t done anything to rein Baker in, because Columbia didn’t have to show the documents that would prove whether they did anything. Without looking at the secret documents, who could say the hospital had done anything wrong?

The Texas Supreme Court went even further. Even if Baker was incompetent, Justice Nathan Hecht wrote in the majority opinion, and even if Columbia’s peer review board knew it, “there is no evidence …  that questions about Baker’s competence required Columbia to keep him from operating on Romero as he did.”  In other words, it was no longer a given that a hospital shouldn’t have allowed a drug-addicted doctor with a history of malpractice cases to operate. One now had to prove it.

It is perhaps worth nothing here that Texas Supreme Court justices are elected, and from 2000 to 2014 Hecht would go on to take $83,500, or about 5 percent of his total, from pro-tort reform interests.

There was a terrifying logic to Hecht’s decision, which blended all the bills and decisions that had come before into a poisonous cocktail of total hospital immunity. Hospital boards now existed in a state of perfect ignorance —they could let doctors operate with impunity. If you kept your eyes on the trees, you didn’t have to notice that the forest was burning.

 

Where does this leave Dr. Duntsch’s victims? With little choice but to challenge the constitutionality of the malice law upon which the hospital immunity rests. The legal challenge in the Baylor case is the first constitutional challenge since tort reform to the credentialing laws, the first attempt to open hospitals back up to liability for the doctors they allow to practice. But Barry Morguloff and the three other plaintiffs are facing a powerful adversary: Texas Attorney General Greg Abbott, who is the Republican nominee for governor.

Tort reform has been a major feature of Abbott’s political career. In 2002, when Abbott was running for attorney general against Kirk Watson, he made tort reform a central plank of his campaign. In his campaign literature, he referred to Watson as a “plaintiff personal injury trial lawyer,” which is to say, the kind of lawyer people love to hate.

Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.

Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.

If anything, those numbers understate how much he’s brought in from tort reform interests. In his gubernatorial race, Abbott has brought in $2.8 million from what Texans for Public Justice calls “tort tycoons,” the 34 super-rich Texans who also gave heavily to pro-tort reform groups like Texans for Lawsuit Reform PAC. Since his race for Attorney General in 2001, they’ve given Abbott $10 million. All told, about one out of every five dollars he’s raised in his time in office has come from people and political groups staunchly imposed to strengthening the tort laws.

Abbott’s involvement in the lawsuits puts him in the uncomfortable position of appearing to defend Baylor. The Dallas Morning News, which broke the story of Abbott’s intervention, gave it the headline “Abbott Sides with Baylor hospital in neurosurgeon lawsuit.” The plaintiffs’ lawyers immediately pounced on Abbott.

“Mr. Abbott is making it clear that his priority is to protect hospitals, not the patients they harm,” Kay Van Wey, the lawyer for Kenneth Fennel and Mary Efurds, told The Dallas Morning News.

Jim Girards, Passmore’s attorney and the man who came up with the constitutional challenge strategy, was even more blunt. “I think it’s absolutely insane that he has chosen to defend the hospital that enabled this … sociopathic neurosurgeon to wreak havoc on its patients,” he told The Dallas Morning News. “I hate to think he’s doing it to pander to the medical lobby.”

This made the Abbott camp unhappy. “The Dallas Morning News’ article is misleading and filled with errors about the State’s involvement in this case,” spokesperson Lauren Bean wrote in a statement to me. The attorney general’s office, she explained, wasn’t defending Baylor or Duntsch, it was defending the law. If Duntsch or Baylor were found to have violated the law, they would be held accountable, and nothing that the attorney general’s office had done would change that.

The plaintiffs’ attorneys response: bullshit.

“[Abbott] has the ability to get involved in a case like this,” Girards told me, “but he doesn’t have the obligation. He chose not to get involved with other cases with significant constitutional issues. It gives a clear impression that he is jumping into this case to pander to the people giving him money.”

If the federal court rules that the plaintiffs suing Baylor are wrong, there will be no way to hold hospitals accountable for the doctors they hire. Hospital administrations will retain all the incentives to hire doctors—prestige, a cut of the money from their surgeries—with no consequences for keeping a Dr. Duntsch in the operating room.

Correction: The story incorrectly stated that Prop 12 passed overwhelmingly. In fact, the ballot measure passed with just 51 percent of the vote. The story has been corrected.

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  • rodt

    Love Texas

  • Dr. Shekelstein

    Someone should turn him into a quadriplegic.

    • Ron Noname

      Not just this dunce or duntsch azzclown butt, several of the scumbags in this case.

      • flora68

        Greg Abbott, for one. And he’s already halfway there.

  • http://geo4pak.com/pakistani-chat-room/ Iftikhar Qamar

    yes

  • 1bimbo

    a doctor in a hospital is like a hairdresser at a salon, the beautician leases the space to work so if she screws up the haircut, the salon is not culpable just the beautician.

    • texasaggie

      Not necessarily. In order to have admitting privileges, a doctor has to meet certain standards. If the hospital grants him admitting privileges when he lacks those standards, the hospital has some skin in the game.

  • Stan Astan

    It’s comforting to know that all the surviving victims of Texas physicians will be able to get health insurance (pre-existing conditions and all) via Obamacare and find doctors in other states.

  • havaseat

    7 years to regain use of arm and hand and fingers after botched surgery at RHD hospital, Sorry son of bitches And Med board does nothing,

  • chuke

    When Abbott was paralyzed after a tree limb fell on him while jogging in Houston, he got an enormous settlement. Then he went about making sure that nobody else could do the same. I’ve often thought about how his dishonesty in pushing for tort reform has caused enormous suffering to those who are injured from accident or malpractice and to the families who must sacrifice their lives to care for them. Having had a quadriplegic in the family, I know how heartbreaking that situation can be. I don’t want Abbott, a man totally lacking in integrity, to be our governor. We already know how disastrous that can be.

    • Kathleen3

      Greg Abbot has more integrity, ethics, and morals than most men walking this earth. I would suggest you read up on tort reform before spewing such venom on a man re his position on a subject you obviously are not familiar.

      • SuzanShinazyRN

        I suggest you try living life as a med-mal patient, left disabled, financially ruined, in pain and not even able to get medical care for the medically induced injury. Watch your family suffer when they try to shoulder the burden of the errors on their own …..then maybe you can speak on this subject with fairness.

        • Kathleen3

          You can’t seriously claim there is no abuse in the amount of medical law suits or the amount of settlements awarded. Work on cleaning up the fraud vs perpetuating the abuse and then point your finger.

          • SuzanShinazyRN

            Patients must come first. Period. When there is medical malpractice, the patient and/or their family should be informed immediately. The patient and family’s needs must be taken of. It can no longer be acceptable to throw medically harmed patients under the bus, knowingly leaving them dead or disabled, financially devastated or even homeless and without medical care. This is inhumane, unethical, disgusting, and the largest fraud of all. I cannot fathom why anyone would think it is ok to do this?

          • Kathleen3

            It is not the patient; rather, it is the unscrupulous attorneys who, out of greed and abuse of the system, have negatively impacted the patients who have been harmed.

          • SuzanShinazyRN

            If the medical industry did right by the injured patient, attorneys would not be needed. That certainly did not happen for the patients in this article.

          • JohnnnyRebel

            Kathleen3…..Instead of shooting your mouth off with factual inaccuracies and total misstatements, you should spend some time researching published information regarding the percentages (e.g. the percentage of pay-outs where the court allows huge awards to “stand”). Your statement about unscrupulous attorneys is In Texas, is 99.5 % hog-wash propaganda. There is NO SUCH THING AS FRIVILOUS LAWSUITS in Texas. Why is this the case??? Because our court system has what is called ” summary judgment adjudication.” A judge will determine the merit of the case before it is allowed to proceed. If the judge decides it is “frivolous” and without merit, the case will be dismissed.

            Our court system in Texas PREVENTS frivolous lawsuits. In spite of this fact, the Governor, slick hair Perry and his sleaze-ball cronies have decided, through Tort-Deform Laws, that they {the Texas State Legislature} know better than a judge and a jury of our own citizens, what constitutes “an excessive jury award.” This is total bullshit. Rich Perry is NOT a god, and the Texas State Legislature is not “gifted” with any special “super-natural judicial powers.” This is nothing but political corruption at it’s worst. Too bad this corruption is killing people to allow for greater profits for the Corporate State.

      • JohnnnyRebel

        Kathleen3…….Either you don’t know shit from shine-o-la, or you are a “Re-thug-lican” fraud trolling here. Abbott is a MAJOR Hypocrite and a scumbag of immense proportions!!! He has no honor and certainly he has no integrity. It’s pure “bribery” and “corruption” when a politician like Abbott takes political “pay-outs” to run for office from the same organizations who want his legislative support. You don’t even know how to spell his last name. You are ignorant as sin!

      • JohnnnyRebel

        I consider myself to be a Christian. That being said, this planet would have been much better off (less people harmed) if that falling tree limb would have taken Greg Abbott on a spiritual journey to that giant bon-fire he so richly deserves. Abbott is a vile, bitter, and “small” man. He is a poor excuse for a human being.

  • The Angry Trapezoid©

    The lady who sued McDonald’s only wanted to be reimbursed for the medical costs that Medicare didn’t cover, nothing more. There’s a documentary called ‘Hot Coffee’ that’s all about tort reform in which her case is featured. Granted, there are a tiny minority of people who do try to rip the system, however, that doesn’t mean they should ruin it for everyone else who has legitimate beef with human butchers (malpractice suits). It’s also our right to know the background of the doctor who will be cutting us open and messing around with our bodies at our expense (I realize there is cost share with insurance companies if applicable).
    Abbott blathers on about how patients must have freedom and rights and other such rhetoric and that’s why he’s against Medicaid expansion. He’s trying to claim Obamacare will hurt people, but it’s ironic that his tort reform platform and stripping of patients’ rights is what’s actually hurting people. People should have the right to know accurate information about the doctors that will be operating on them and to receive accurate information on their background. Normally I’d say be proactive, but how can you in a case like this? Horrible laws.

  • Susan StJohn

    Several visits to different medical practitioners, one in Fort Worth and two in Columbus made me a believer that Texas is at the bottom of the medical ethics list of violations. In Fort Worth I was hospitalized through ER (in a popular religious facility) for abdomen pain. In they morning the on-duty doctor came into my room with out an escort. He approached me and tried to feel my breasts. I stopped him and asked him what was he doing and why. He said he was to examine my breasts, a standard practice he explained. I said that I have never had a breast exam when I have had stomach pain. I reported him to the hospital administrator and to the over site department for the state as well as the local AMA. Nothing was done. In Columbus, I again had stomach pain and admitted through ER . The surgeon overrode my primary doctor who advised a cat scan versus an invasive procedure and insisted I had a “hot belly” which indicated appendicitis . He did a laparoscopic removal of a perfectly fine appendix and caused me to have 3 surgeries to repair subsequent umbilical hernias. Another doctor in Columbus treated me for a brown recluse spider bite. When it did not heal even after a skin graft he threw his hands in the air and said he could not do anything else. A wound care facility in Tomball healed the wound in a month when the local doctor failed after 6 months. I only go to the Houston Medical Center for care, a 160 mile round trip. I only go to accredited teaching facilities rather than a hospital whose affiliated doctors who, in my humble opinion , generate ineffective treatment to bring income into the local hospital. There are many issues surrounding ineffective treatment one of which is the suburban legend ” but, he has been my family doctor from before I was born!”. So many people are ignorant of proper medical practices and simply trust what the local doctor advises.

  • texasaggie

    It took the Medical Board of Examiners how many years to dump this guy? It took them all of two months to dump some guy who didn’t have local admitting privileges at a local hospital when he performed a medical abortion. Prior to the recently passed law against abortion, what he did was completely legal and in fact, the usual practice. Tell me that politics isn’t more important to the Medical Board than patient well-being.

    Are there any bets as to whether Gov. Goodhair appoints the members of the Board?

  • Tim Smith

    The one inaccuracy is the statement that Prop 12 passed overwhelmingly. It barely squeezed into slimey law in 2003 by a slippery 51% of the vote, even with a mega rich funded misinformation campaign, off year, July holiday week, special election.

  • Jack Hughes

    A cautionary tale about so-called “tort reform,” and what happens in
    Republican-controlled states where corporations have rights but citizens
    don’t.

  • overdoneputaforkinit

    Bad doctors bring in a lot more business and profit for the hospital to correct their mistakes. If the patients survives, they might need permanent care or medical expenses for the rest of their lives because of the malpractice. That is what is underlies hospitals extremely lethargic concern over removing bad doctors. In states that make it very hard to sue a doctor, bad doctors are keepers because they are double the profit of good doctors.

  • MoreVictimsComingSoon

    After seven family members helplessly witnessed the horrible death of our father at the hands of an incompetent “nurse” we became aware of the “legal” injustice that Prop 12 forced on Texans. We met with the authors of this imorral law; The TLR (Texans for Lawsuit Reform) and TAPA (Texans Alliance for Patient Access). TLR response “This law has a disproportionate effect on our seniors, our poor, our young, and our handicapped, we will not be changing it as it is just too good for Texas” . TAPA quote, “Your father had a horrible disease, and was going to die a horrible death no matter what!” This is the moral compass of the scoundrels who have written this law, and control the so call “representation” of Texans whose rights have been stripped away to insure their corporate immunity.

  • Stephan Anatoli

    My comment follows. I first wanted to make a point which is in part why I commented at all, but which is very off center as an issue. As a litmus test, I traced all the slanderous names used over and over, they all go back to the Texas Observer, and Randall Kirby. A google search took 70 hits to find any other doctor labeled as such, and he had killed 78 patients, and was convicted. The two hybrid themes are the harsh press, and harsh lay response, when both parties know these are allegations, that he had defended himself to the board, that he has yet to have an opportunity to defend himself. Allegations??? This reposted article, is appropriate. I wanted to repost it first, before my comment, because it is the only one of its kind. What happened to due process???

  • Stephan Anatoli

    (repost of previous comment) This article and the related comments are causing me to question the quality and objectivity of the Dallas Morning News and the intelligence of its readers. Although the headline should have been more clear and read: “Federal suit ALLLEGES Baylor failed to stop cocaine-using surgeon from harming patients”, I am not sure this bunch of commenters would have understood what the word “alleges” means anyway. So, everything high-priced lawyers file to Federal courts to try to drum up high dollar lawsuits is automatically published and accepted as truth now? Do you all realize that complaints filed to the Federal Court System are just that: COMPLAINTS? These allegations have not been reviewed by the judge yet and may not even be true. The comments on blaming this tragic situation on Texas malpractice laws (a.k.a. Tort Reform) are ironic in light of the fact that the firm filing the suit, Girards Law Firm, left a comment on this article directing people to their “blog” which is really just an advertisement ending in “For more information on this case or help in any medical malpractice or serious injury or death case contact The Girards Law Firm”. I would say that even after tort reform, ambulance chasing in Texas is alive and well. Don’t you find it interesting that the doctor whose license has now been suspended is not even named in the claim (the claim that Mr. Girards so conveniently directs the readers of his blog to)? The claim also mentioned that the physician has filed bankruptcy. So, could there be a possibility that the Girards firm is attempting to make money off a healthcare system by stirring up allegations which may not even be true? Mr. Girards titled his blog “Has Baylor Health System Lost Its Soul”. Perhaps a better question would be, has the Dallas Morning News lost its soul to high-powered law firms?

  • Stephan Anatoli

    I am an English Professor, and proclaimed reporter, long ago. My comments are meant to be fair and balanced but this is not so easy. And I admit, I am biased, my father, and sister, are healthcare professionals, my close friend has severe congenital scoliosis and is treated at the Baylor spine center of excellence.This ongoing cycle of horrific headlines, patients, lawyers, doctors, making criminal accusations, allegations made as statements of fact, intentionally pretending that there is no Pink Elephant screaming at all of us, driving a bus, into the room, with all the historical facts … what the hell is going on in Dallas? It is beginning to become a recycling feat of strength. This is not a series of plaintiffs, this is a group. This is a law firm called Key Van Wey?, and Girard Law Firm, whose website looks likes an asbestos class action legal group with infomercials on the TV guide channel after 2 am … “If you have mesothelioma and are near death and on a ventilator, from asbestos insulation in rural America housing of the 1930s, or if you have ever heard of Dr. Christopher Duntsch, please call us, you may be entitled to damages, or something like that. Patients are patients. But this group, is made complete, by Dr. Doug Won, Dr. Mike Rimlawi, Dr. Randall Kirby, a vascular Surgeon, and apparently the most popular expert witness in Dallas. There is a redundant common theme, and a series of bizarre confounders that I am just noticing as many others are responding the same in blogs, some much more verbose than I could ever be. It seems many in Dallas are now just seeing, what they always saw but did not see. Why … that is some strong negative sentiment when it makes logic and the family circus look the same. This group, lacks any professionalism. These are allegations. They can be reported in a non biased manner. But for some reason every reporter and professional involved, except Baylor and the Texas Medical Board, cannot be quoted without sociopath, murder, Hannibal Lector, several drug and alcohol comments, statements of his surgical care not even possible, much less true, payoffs of several millions to him by Baylor, MISI, etc. And it is always the same group. What does not add up is that this doctor is a physician, surgeon, fellowship trained. Has a PhD, and is an Assistant Professor. Has written books, patents, manuscripts, articles, chapters. And when asked he states that he is most proud of his commitment to academics, to training students, and to teaching at the graduate level. That is not a sociopath, egomaniac, whatever else. Does anyone realize that no one has brought medical malpractice actions against him? Even now. Yes several patients suddenly filed intent. Yes 2 patients filed claims in the 2 months after the suspension. But not one has followed through. Is that not strange? When asked why he has not responded in the media, by his patients, colleagues, NBC and the DMN stated that he felt he could not respond in the press because the media was so harsh. Why? He says because he feels that his patients have a right to seek formal actions by the TMB and in Medical Malpractice proceedings, and that his comments would simply make the issue worse for his patients. That is a quote! NBC asked him would he address all the gross negligence recently, and he said yes he would with NBC or any press, but not his patients and their claims. For the first time, he stated he would respond to any statement or allegation, that was not about his patients and their care. He had no issue addressing every comment in the press, and much of the petitions, that he stated simply was not true. He told NBC, that he has asked every reporter, that ever approached him, why they have reported so many awful things, yet not one article has ever linked any allegation, to evidence, or to facts. That is not a sociopath. That is a professional. NBC did not report this, why? The most difficult conundrum is the public record. No medical malpractice. No events in his training or practice. No allegations in Tennessee, nor in Dallas, till he was suspended in June 2013. All lawsuits were filed after his suspension? Randal Kirby repeatedly is quoted in the press regarding a one time event, a surgery he did with Dr. Duntsch. One year later he releases 71 pages of documents that state he was at every hospital, involved with every patient, and can attest to every allegation. I would presume that Dr. Kirby’s actions are in good faith, ethical, and well intended. But if he cannot communicate without being so ugly, then he is not believable. “Blunt, Impaired, sociopath, must be stopped, let’s get started, maimed, killed, careless, clueless, unfortunately, Dr. Won, did not do one procedure, single worst decision, arrogant, pathetic, first year resident, arrest him, put him in jail”. I have never seen an official letter, or report, communicate like this. The 2 TMB releases, make his letter, seem almost not credible. This is worse than the Texas Observer, worse than the Girard firm. The problems are multiple. First, he is not believable as giving a good faith opinion. He appears to have it out for Dr. Duntsch. Second, this doctor does not realize how many of his comments, are incorrect, and a matter of public record! The most careless is this contract. What it communicates is clear and not difficult to interpret. But Morguloff’s attorney misreads this legal document over and over. It is only by intent, or poor form. Neither are acceptable in a public venue. How is that possible, in a letter to the board, the DA, a professional opinion. Finally, why was the date of the suspension the first ever documented finding of drugs, alcohol, and yet at the hearing the first and only time it was addressed, it was completely dismissed. It is ironic that only one person, and one group, in Texas know that answer. Dr. Duntsch, and the board, who reviewed every document, peer review, complaint, issue, patient chart, clinic chart, credentialing. It is interesting that Dallas Medical Center has nothing to added by a few statements of negligence, yet Baylor is defending federal law suits “on the merits of the case”. And the Texas DA, after a judge reviewed the matter, and made a decision on it, instructed him to defend Texas medical care and CAP reform. Texas as I understand it, gives its board immunity in its proceedings. It seems it would be in the best interest of all, to make all relevant findings, all responses and defenses by Dr. Duntsch, a matter of public record. The truth is there, it must be. Surely that is easier, than Baylor defending again and again lawsuits that are unfounded. Surely that is easier than the DA simply stating he will defend CAP reform without explaining why. If the truth is anything remotely resembling the Plaintiff groups of Kay Van Wey and Girard, and Won, Rimlawi, and Kirby (and the other one that is the expert witness on every petition, Dr. Lazarus?), then the Texas has a duty to both release these records, and indeed, the Dallas DA has a duty to proceed as Kirby states. However, if there have been no new findings, no new “professionals to quote”, an inability of any party to be able to communicate in a humane and “fair and balanced manner: It probably is just as bad as it looks for this group. And the group harmed the most is not the group causing the harm. I believe in CAP reform. But even I don’t understand how any entity can put a single value on all possible malpractice, then make it so hard for patients truly harmed to seek damages. Is it not common sense, to limit CAPs, but it should be moderated, to either create a sliding scale, or defined amounts per damages. How is it that in one state a patient can sue for millions, and in Texas for 200K? That is not good for Texas Healthcare. Because it is not fair, it is not even reasonable, and it creates a paradox for many patients. Because many attorneys simply won’t help them because of the financial limits. Nonetheless, more fair CAPs, and more transparency as for this Doctor and these patients, would be the best improvement in Texas Medicine, ever. We can do better for all involved. The truth will be at the end of this. No matter what that is.

    • Randall Kirby

      To Mr. Anatoli
      You have proclaimed yourself a “lab director” “literary editor” “English professor” and
      “proclaimed reporter” online
      You sound about as sociopathic and narcissistic as Christopher Duntsch
      Your comments are as clueless as Dr. Duntsch’s career
      The both of you should just stick to killing guinea pigs
      The integrity of the DMN, the TMB, the attorneys representing Dr. Duntsch’s victims is unimpeachable
      You are defending the worst neurosurgeon ever finished from a ACGME accredited program in the history of the US
      Leave this matter to the professionals
      KISS MY ASS!!!!!!!!!!!!!!!!!!!!!
      Randall P. Kirby, M.D., F.A.C.S.
      Board certified and recertified vascular and general surgeon
      Call me
      (214) 803-3430 cell
      (214) 345-5660 office

  • Stephan Anatoli

    Please Help? This cannot be fully correct. Need factual support for allegations and petitions. None exist, anywhere? Need input here to balance my very anti-plaintiff findings, and unethical behavior implied.

    Thanks for any help.

    Stephan

    Texas Observer Press May 1 2014

    Kirby PDF 71 Pages
    1 Morguluff Petition
    2 Baylor Contract
    3 Kirby Letter

    Review using basic investigation, public records, and the kirby documents follows:

    Use of gross, or criminal, here, is not explained. But refers to the implications of the following being accurate, vs. allegations vs. Baylor, MISI, Dr. Duntsch, Texas Medical Board, Dallas DA, Financial, Otherwise. I think this is self explanatory.

    Morguluff Petition1 – 68

    15 – Correct, Public Record, Neutral Demographics, Dates, Names

    10 – Refers to a patient and medical care. Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.

    28 – Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, criminal negligence

    The petition is easily proven to be 28 vs 0, petition vs. Baylor, Duntsch. How is this possible?

    1 – 11, 16, 18, 19, 63
    Public Record
    Correct

    12 – 17, 20 – 37, 39, 41 – 42, 49, 62
    Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, criminal negligence
    Harmed – Texas, Texas Health System, Baylor, Dr. Duntsch’s Patient’s, TMB and Civil Medical Malpractice Due Process
    Public Record, Medical Records, Board Public Records, DEA / DPS Records, W and ZaZa hotel records, Legal Records, Attached Baylor Contract

    38, 40, 43 – 48, 50 – 52
    Refers to a patient and medical care.
    Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.
    Exceptions are all comments about negligence outside of basic medical malpractice.

    Kirby Letter

    Defamation??? Sociopath, maimed or killed 7 patients, etc, Is defamation in a professional letter even appropriate?

    Public Record – Dr. Randall Kirby Operated on a patient once, with Dr. Duntsch, in 2011. Dr. Duntsch fired him, reported him for negligence. Their relationship for life, is 20 minutes.

    Public Record – Dr. Mark Hoyle Operated on a patient once, with Dr. Duntsch, in 2011. Dr. Duntsch fired him, reported him for negligence. Their relationship for life is 1 hour.

    Won Comments – Kirby or Won will need to defend them against the public records. Legal. Emails. Baylor. MISI. Rimlawi.

    All comments on patients – per the records –

    Refers to a patient and medical care. Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.

    Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, defamatory

    Baylor Contract

    Gross Negligence in interpreting this legal document, by the attorney, by Kirby. This is a basic simple legal document, not complex litigation?

    Every statement about financials, terms, Baylor, MISI, Compensation, Marketing is Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, defamatory.

    The public record, and this document, demonstrate that Baylor and MISI breached the contracts in full, before 080111 100%.

    The public legal record, demonstrates that Dr. Duntsch fired MISI, for breaking the the contract due to multiple reasons, through legal paths, and his attorneys, in 0911.

    Conflict of Interest Issues here, the TMB, in Legal Actions?

    Dr. Doug Won – Nearly all listed.

    Dr. Mike Rimlawi – Several.

    Dr. Randall Kirby – Nearly all listed.

  • Stephan Anatoli

    Texas Observer Press May 1 2014

    Kirby PDF 71 Pages
    1 Morguluff Petition
    2 Baylor Contract
    3 Kirby Letter

    Review using basic investigation, public records, and the kirby documents follows:

    Please provide factual feedback to balance plaintiffs allegations. Thanks!

    Use of gross, or criminal, here, is not explained. But refers to the implications of the following being accurate, vs. allegations vs. Baylor, MISI, Dr. Duntsch, Texas Medical Board, Dallas DA, Financial, Otherwise. I think this is self explanatory.

    Morguluff Petition1 – 68

    15 – Correct, Public Record, Neutral Demographics, Dates, Names

    10 – Refers to a patient and medical care. Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.

    28 – Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, criminal negligence

    The petition is easily proven to be 28 vs 0, Baylor, Duntsch vs Peition, Kirby. How is this possible?

    1 – 11, 16, 18, 19, 63
    Public Record
    Correct

    12 – 17, 20 – 37, 39, 41 – 42, 49, 62
    Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, criminal negligence
    Harmed – Texas, Texas Health System, Baylor, Dr. Duntsch’s Patient’s, TMB and Civil Medical Malpractice Due Process
    Public Record, Medical Records, Board Public Records, DEA / DPS Records, W and ZaZa hotel records, Legal Records, Attached Baylor Contract

    38, 40, 43 – 48, 50 – 52
    Refers to a patient and medical care.
    Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.
    Exceptions are all comments about negligence outside of basic medical malpractice.

    Kirby Letter

    Defamation??? Sociopath, maimed or killed 7 patients, etc, Is defamation in a professional letter even appropriate?

    Public Record – Dr. Randall Kirby Operated on a patient once, with Dr. Duntsch, in 2011. Dr. Duntsch fired him, reported him for negligence. Their relationship for life, is 20 minutes.

    Public Record – Dr. Mark Hoyle Operated on a patient once, with Dr. Duntsch, in 2011. Dr. Duntsch fired him, reported him for negligence. Their relationship for life is 1 hour.

    Won Comments – Kirby or Won will need to defend them against the public records. Legal. Emails. Baylor. MISI. Rimlawi.

    All comments on patients – per the records –

    Refers to a patient and medical care. Is not addressed here at the request of Dr. Christopher Duntsch. To protect his patients and their right to due process. “Only in a formal venue”.

    Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, defamatory

    Baylor Contract

    Gross Negligence in interpreting this legal document, by the attorney, by Kirby. This is a basic simple legal document, not complex litigation?

    Every statement about financials, terms, Baylor, MISI, Compensation, Marketing is Incorrect, Inaccurate, careless, negligent, fabricated, fraudulent, gross negligence, defamatory.

    The public record, and this document, demonstrate that Baylor and MISI breached the contracts in full, before 080111 100%.

    The public legal record, demonstrates that Dr. Duntsch fired MISI, for breaking the the contract due to multiple reasons, through legal paths, and his attorneys, in 0911.

    Conflict of Interest Issues here, the TMB, in Legal Actions?

    Dr. Doug Won – Nearly all listed.

    Dr. Mike Rimlawi – Several.

    Dr. Randall Kirby – Nearly all listed.