Pay No Attention to ‘Dr. Death’ (Gwen Moritz Editor’s Note)

It remains to be seen whether the state Supreme Court will reinstate Issue 1 on next month’s statewide ballot. For proponents of the tort reform amendment, the success of a podcast called “Dr. Death” could not come at a worse time. Perhaps not too many voters will tune in. Maybe even fewer will make it to the last chapter of the disturbing story.

The limited series, produced and narrated by Dallas journalist Laura Beil, has been wildly popular — in the limited way that podcasts are popular — since it debuted last month. It recounts the path of destruction wrought by Christopher Duntsch, a neurosurgeon who botched 33 of the 37 spinal surgeries he performed in Dallas in just a year and a half. Two patients died from his malpractice; several others — including his best friend — are paralyzed for life.

Duntsch was recommended by doctors who knew nothing about his skills other than his resume, which turned out to be misleading at best, or his slickly produced online presence. Hospitals that eagerly granted him privileges quietly withdrew them when it became clear that he was a menace, allowing him to ply his trade elsewhere.

Surgeons who were called in to try to repair the damage he caused were horrified. One suspected that Duntsch was an imposter who had had no medical training at all. They set out to stop him, but it took more than a year to get Duntsch’s license suspended — during which time, of course, he was operating on the spines of still more patients who genuinely believed they were being cared for by the very best. Because Duntsch, as devoid of modesty as of surgical skills, told them he was and no one was warning them otherwise.

Finally, in a move that appears to be unprecedented, Duntsch was charged with one count of injury to an elderly person and five counts of assault. Not a civil case alleging malpractice, but actual criminal prosecution. After a jury trial in which the prosecutor pointed to an email in which Duntsch told a girlfriend that he was “ready to … become a cold blooded killer,” he was sentenced last year to life in prison.

What does this have to do with Issue 1? Glad you asked.

First of all, the fear of litigation — from patients, from Duntsch himself — seems to have been why hospitals that had allowed him into their operating rooms were hesitant to warn the public, or even report him to the state medical board. That suggests that something is wrong with the Texas system for protecting the public. (It also failed to protect the hospitals from litigation after the extent of Duntsch’s incompetence became clear.)

But if you listen to the final chapter of the story, Episode 6, you’ll learn that another impediment to the public learning about the butchery of “Dr. Death” was the difficulty injured patients and their survivors had in finding lawyers who would represent them in civil court. That, Beil reported, is because Texas adopted tort reform in 2003 that limited noneconomic damages (“pain and suffering”) to $250,000. “It is not worth an attorney’s time and energy to take on a malpractice case in the state of Texas,” one of Duntsch’s victims told Beil.

Despite an increase in population of more than 25 percent since 2003, the number of malpractice claims filed across Texas each year has dropped by more than half. Not the number of successful claims or the size of the verdicts, but the number of patients who even filed suit.

And while that might sound like a very good outcome if one believes that most malpractice claims are frivolous in the first place, it had this very bad side effect in the Duntsch case: The only people who knew that he was a very bad surgeon were the ones who had already observed or — shudder — experienced his work. A lawyer approached by one victim would have no way of knowing that there were five or 10 or 30 others. No journalist could spot a pattern, the way the reporting staff at Arkansas Business watches for patterns in, say, collection suits and foreclosures.

Ultimately, Beil reported, at least 19 of Duntsch’s patients (or their survivors) got settlements; 14 were represented by the same lawyer “more out of a sense of outrage than out of any financial upside.”

Issue 1 would cap noneconomic damages in Arkansas at $500,000, which would certainly be more attractive to lawyers than Texas’ cap. But Issue 1 also forbids lawyers from taking a contingency fee of more than one-third of the net amount awarded to the client. Proponents sell that as more money for the plaintiff, which is certainly true if it doesn’t discourage lawyers from taking the case in the first place.

Email Gwen Moritz, editor of Arkansas Business, at GMoritz@ABPG.com and follow her on Twitter at @gwenmoritz.