When ‘do no harm’ does not apply

The National Practitioner Data Bank (NPDB) was created by Congress in 1986 as a tool to compile information of malpractice judgments, reports of bad performance at health care institutions, and discipline by state licensing boards. Operated by the U.S. Department of Health and Human Services, the information in the NPDB is not open to the public, only to hospitals, clinics, and licensing entities, with the intent to prevent bad doctors moving from state to state and escaping the consequences of their incompetence or malfeasance.

However, in practice, the data bank has gaps in its ability to flag. This is especially true if the medical community either decides a problem is not worth the paperwork, moves a shoddy doctor around like the Catholic Church has been known to move a pedophile priest, or kicks problems down the road for someone else to deal with.

On June 10, 2013, Jeff Glidewell underwent cervical fusion surgery at University General Hospital in Dallas, Texas, ProPublica reports. The 54-year-old Glidewell had been suffering from a pinched nerve for the better part of a decade after an accident. After searching Google for a doctor that would be covered by his insurance, Glidewell became interested in Dr. Christopher Duntsch after seeing positive reviews on Healthgrades and an infomercial video for the “Best Docs Network,” which he mistook as a legitimate award instead of a paid advertisement. What Glidewell did not know (and couldn’t have known) was that Duntsch had left a trail of misery at four hospitals over the course of two years wherein he would ultimately either gravely injure or kill 33 out of the 37 patients he had performed surgical procedures on and earn him the moniker “Dr. Death.”

As the dead and injured patients mounted, only one of the hospitals involved had reported Duntsch to the federal database. Duntsch’s colleagues begged and pleaded with the Texas medical board to intervene. However, the state’s investigation took over a year, during which Duntsch maimed more people on operating tables, and those victims found they had little recourse in the courts because of “reforms” taken by the Texas legislature.

For his gross negligence, Duntsch is now serving a life sentence in a Texas prison. Glidewell was the last patient Duntsch would operate on, and he wouldn’t escape unscathed. During the surgery, in which Duntsch was supposed to remove a diseased disc from Glidewell’s cervical spine, Duntsch had mistaken muscle tissue for a tumor. The damage Duntsch inflicted damaged Glidewell’s esophagus and thyroid, while also injuring the left vertebral artery. The bleeding from the artery made a bad situation even worse, which Duntsch dealt with by shoving a sponge into Glidewell’s neck and then sewing Glidewell up with the sponge still inside his body. To then add insult to many injuries, Duntsch abandoned Glidewell’s care for others to try to fix once the depth of his mistakes were known. In the end, Glidewell suffered nerve damage which required months of rehab, and left him only able to eat food in small bites.

In the aftermath of the Duntsch case, a lot of focus was directed at the circumstances which allowed the situation to continue over the course of 40 surgeries. Was it simply an aberration of one horrific doctor who was either grossly incompetent to the point of homicidal negligence, or a cold-blooded murderer that was intentionally harming his patients? Or did it go beyond Duntsch into systemic problems that have been made worse by bad public policy that allows incompetent doctors to get off the hook too easily?

Over the past two decades, arguments about health care costs have intersected with phrases like tort reform and physician shortage in regard to how we as a society deal with medical error, or a preventable error in judgment that has an adverse impact on a patient’s care—such as unnecessary delays in treatment, delayed diagnosis of a treatable condition, or incompetence in testing and procedures. According to some estimates, medical error may be one of the leading causes of death in the United States, possibly to the tune of about 1,000 deaths per day—although there are some arguments about the severity of the problem and whether it’s overstated. However, whatever the actual numbers, the problem is significant and can leave victims disabled and suffering for the rest of their lives.

Furthermore, the problem of medical error has likely been compounded by the ways legislators across the country reacted to various health care crises over the last two decades.

A doctor, a lawyer, and a politician walk into a bar …

During the 1990s, health care costs rose at double the rate of inflation. President Bill Clinton’s attempt at health care reform failed in Congress. By the start of the 21st century, 44 million Americans had no health insurance coverage and the cost of care was still rising. In the face of public pressure, the Republicans came up with an answer: Blame the whole problem on lawyers.

Conservatives seized on rising malpractice insurance rates for medical professionals, as well as discontent among doctors which led to walkouts and claimed “shortages” of needed practitioners in some states. This, in turn, led to Republican assertions that it was not a broken health insurance system responsible for out-of-control costs to the American public, but trial attorneys who had made the cost of practicing medicine too exorbitant. Conservatives bought wholly into the idea that malpractice claims were driving doctors out of the profession, and had cowed the medical community into practicing “defensive medicine,” or ordering expensive and unnecessary tests and procedures in order to cover the doctor’s ass from potential lawsuits.

The truth, though, wasn’t so simple. The rising malpractice rates? Those rates coincided with the end of the dot-com bubble, and the economic shock of the Sept. 11 attacks, which precipitated a stock market correction. Attorneys’ groups pointed to falling profits as the true reason insurance companies raised malpractice rates. The stats also didn’t support the argument of doctors being overwhelmed with frivolous lawsuits. A 2011 study published in The New England Journal of Medicine showed that for every year between 1991 and 2005, only 7.4% of physicians faced a malpractice claim. However, given the talking points and concerted push from political allies, interest groups such as the American Medical Association (AMA) used the situation as an opportunity for liability reform both on the state and national level.

The result has been that 35 states have passed some form of tort reform. One of those states is Texas, where in 2003 the legislature passed House Bill 4, which placed a $250,000 cap on noneconomic damages such as pain and suffering. The bill was codified into law with Proposition 12 the same year, wherein the voters of Texas amended the state constitution to give the legislature the ability to limit citizen’s rights when it comes to medical malpractice. Then-Gov. Rick Perry, who advocated for and signed House Bill 4 into law, promised the move would attract more doctors to Texas while lowering health care costs.

This Healthcare Triage video gives some insight, particularly about when it comes to how many claims are made and paid out, how many injuries are caused by bad doctoring, and the impact of  “defensive medicine:”

Almost two decades later, health care costs did not go down in the state. The effect of tort reform on malpractice insurance rates for practitioners is murky. Even with limitations on liability in place, Texas experienced a 9.2% increase in medical liability premiums in 2020. The true effect of the tort reform measures in Texas was a chilling effect on mounting a claim for patients and families who had extreme harm done to them. Finding a lawyer to take a medical malpractice case on contingency became much more difficult given the caps, and in addition to those caps, the legislature put in place other procedural burdens that shield hospitals and doctors.

An article by Saul Elbein in the Texas Observer detailing the “Dr. Death” case outlined the uphill battle a person damaged by medical error faces in the Lone Star State.

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. … What all this means is that the Texas Legislature has committed the state to a policy of medical deregulation—a free-market system in which doctors can practice as they please with limited government interference. Only their consciences, and those of their fellow doctors, limit them.

So can regulations and rules help protect us from bad doctors?

Look for Part II of this report tomorrow.